INSIGHTS:

Ontario Municipal Board Hearings - Love them or hate them

Personally, I love to hate them. However, for many lake associations or individuals, Ontario Municipal Board (OMB) hearings may be the last resort to have your views heard about a development application.

OMB Hearings are expensive, adversarial, stressful and pit neighbours against neighbours, and the best advice is to stay away from them if at all possible. However, if your municipal council, committee of adjustment or planning board makes a decision on a rezoning, subdivision, consent, or a minor variance application that you simply can't live with, then it is your right to appeal that decision to the Ontario Municipal Board.

What is the OMB - The Ontario Municipal Board is an independent and impartial adjudicative tribunal. The purpose of the OMB is to listen to the appeals and concerns of people, associations, developers and other interested parties who object to decisions of local approval authorities. The Board deals with over a hundred pieces of legislation, but the most common are land use planning and aggregate applications.

Four Parts to a Hearing - There are usually four stages to an OMB hearing:

1. Preliminary Motions
2. Evidence
3. Final Arguments, and
4. The Decision

At the start of the hearing the Board will hear Preliminary Motions that deal with procedures and timing, rather than the substance of the hearing. Typical motions might include a request to provide additional information or to adjourn the hearing to study new evidence that has been filed. Next, all witnesses will be given an opportunity to present their evidence, and then be cross-examined by the opponents. After cross-examination, the witness may be given an opportunity to re-examine their evidence, which can be followed by a rebuttal. When all witnesses have given their testimony, each side presents their final argument. For small matters the Board may give a verbal decision on the same day, and for larger matters the Board will normally provide a written decision, which may take 3-6 months.

Tests for a Minor Variance - Many OMB hearings in cottage country involve minor variance applications. When hearing these applications the Board will specifically consider the following four tests as identified in the Planning Act:

1. Does the application conform to the Official Plan?
   
2. Does the application maintain the intent of the Zoning By-law?
   
3. Is the development appropriate?
   
4. Is the application minor in nature?
   

Going to the Board? - When preparing for an Ontario Municipal Board Hearing, you should consider the following:

1. The underlying reasons for your objection. Is your objection based on a planning argument, or does it involve a personal issue. If it is the latter, the OMB may not be the appropriate place to settle your dispute.
   
2. Make sure your appeal is not frivolous or vexatious, or you may be faced with the costs of the hearing.
   
3. Does the Official Plan or Provincial Policy Statement support your argument?
   
4. Involve professionals, when necessary. Only they can give opinion evidence.
   
5. Don't wait until the last minute to get ready. Make sure there is lots of time to allow your experts to review your case. Be a good scout and "be prepared".
   
6. Be ready to reach a compromise, before and during the hearing. The best solution is a win-win situation, which doesn't always happen in a Board decision.
   

Ontario Municipal Board Hearings - Love them or hate themMore Arcticles The amount of work that is required to prepare for a Board hearing is truly significant and it is unfortunate that the same amount of preparation is not usually done before local municipal councils make their decision. If this were the case, there might be a few less OMB hearings.

If you are interested in more information, visit the OMB website at http://www.omb.gov.on.ca. It covers everything from hiring a lawyer to how you prepare for a hearing.

Randy French
FOCA Land Use Committee